RFP Attachment 15_ Intellectual Property Rights.pdf

FA8533-25-R-0002

Attachment 15

Intellectual Property Rights

COMMON ARMAMENT TESTER FOR FIGHTERS (CAT-F)

INTELLECTUAL PROPERTY RIGHTS

Intellectual Property Rights

1. Introduction.

a. This Attachment identifies the rights the Contractor grants or shall obtain for the Government to all intellectual property presently identified to be delivered, provided, furnished, or otherwise made available to the Government during performance of this contract. Subsection 3.a identifies the Government’s rights to all technical data, computer software, and computer software documentation pertaining to other than commercial products and commercial services to be delivered, provided, furnished, or otherwise made available to the Government under any Contract Data Requirements List (CDRL) listed in Tables 1 and 2. Subsection 3.b identifies the Government’s additional license rights to technical data, computer software, and computer software documentation pertaining to commercial products and commercial services to be delivered, provided, furnished, or otherwise made available under any CDRL listed in Tables 3 and 4. Subsection 3.c identifies the Government’s rights to any contract administration information to be delivered, provided, furnished, or otherwise made available under any CDRL listed in Table 5. Appendix A includes a copy of all commercial licenses listed in Tables 3 and 4.

b. After award, Contractor delivery in accordance with this contract shall be limited to technical data, computer software, and computer software documentation already identified in Exhibit A until this contract is modified to add the appropriate DD Form 1423(s) to Exhibit A of this contract and that/those CDRL(s) is/are listed in Tables 1-5, as applicable, to identify the Government’s rights in that intellectual property.

c. The table below outlines documents and tables (found in this document) that provide traceability to the data associated with the CAT-F.

Document/ Table

Traceability

Tables 1-4 of this Attachment

• Identify CDRLs that describe or are the technical baseline of WBS elements and/or fulfill SRD requirements.

d. The following versions of clauses cited herein govern this attachment:

• DFARS 252.227-7013 (Rights in Technical Data—Other Than Commercial Products and Services)

• DFARS 252.227-7014 (Rights in Other that Commercial Computer Software and Other Than Commercial Computer Software Documentation)

• DFARS 252.227-7015 (Technical Data—Commercial Products and Commercial Services)

2. Definitions.

For purposes of this Attachment:

“Commercial product” and “commercial service” are defined in FAR 2.101.

“Computer software” is defined in DFARS 252.227-7014(a)(4).

“Computer software documentation” is defined in DFARS 252.227-7014(a)(5).

“Contract administration information” is defined as all intellectual property other than technical data, computer software, and computer software documentation, e.g., financial information, administrative, cost or pricing, or management information, or information incidental to contract

Intellectual Property Rights administration.

“Covered government support contractor” (CGSC) is defined in DFARS 252.227-7013(a)(5), 252.227-7014(a)(6), and 252.227-7015(a)(2).

“Inadvertent omissions” is defined as any unintentional omission perpetrated by the contractor or its subcontractors, suppliers, vendors, and sister divisions at any tier prior to the date of contract award.

“Intellectual property” includes technical data, computer software, computer software documentation, and contract administration information.

“Government” is defined as the United States Government.

“New information” is defined as information that neither the Contractor, nor its subcontractors, suppliers, vendors, and sister divisions at any tier knew, or could have known, as of the date of contract award.

“Technical data” is defined in DFARS 252.227-7013(a)(15).

3. Types of Rights.

a. Rights in technical data, computer software, and computer software documentation—Other than commercial products and services.

1) The Contractor grants or shall obtain for the Government the rights in technical data, computer software, and computer software documentation pertaining to other than commercial products and commercial services described in Tables 1 and 2 to be delivered, provided, furnished, or otherwise made available to the Government as part of a CDRL. All such technical data, computer software, and computer software documentation delivered, provided, furnished, or otherwise made available to the Government during performance of this contract via a CDRL is deemed to be other than commercial technical data, computer software, or computer software documentation unless it is expressly and specifically identified as technical data, computer software, or computer software documentation pertaining to commercial products and commercial services in Tables 3 or 4.

Table 1

Rights in Technical Data (Including Computer Software Documentation)—Other Than Commercial Products and Commercial Services

Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8

CDRL No. CDRL Title CDRL Subtitle Data Item Description (DID)

SRD Number Government Needed Rights

Category

Contractor Granted Rights

Category

Offeror Proposed Price for Rights Category Proposed

Total Price

Table 2 Rights in Computer Software—Other Than Commercial Products and Commercial Services

Intellectual Property Rights Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 CDRL No. CDRL Title CDRL Subtitle Data Item

Description (DID) SRD Number

Government

Needed Rights Category

Contractor Granted Rights

Category

Offeror Proposed Price for Rights Category

b. Additional license rights in technical data (including computer software documentation) and computer software pertaining to commercial products and commercial services.

1) In addition to any license rights under DFARS 252.227-7015 and any rights the Contractor or its subcontractors or vendors grants the Government under the licenses contained in Appendix A to this attachment, the Contractor grants or shall obtain for the Government the following perpetual, royalty free, worldwide, nonexclusive, irrevocable license rights to any technical data, computer software, or computer software documentation pertaining to commercial products and commercial services presently identified to be delivered, provided, furnished, or otherwise made available under a Contract Data Requirements List (CDRL) notwithstanding any statements to the contrary in any of the licenses contained in Appendix A.

2) The Government shall have the right to use, perform, display or disclose that technical data, computer software, and computer software documentation, in whole or in part, within the Government. The Government may not, without the written permission of the Contractor or subcontractor as applicable, release or disclose that technical data, computer software, and computer software documentation outside the Government or use that technical data, computer software, and computer software documentation for manufacture, except that the Government shall have the right to use, modify, reproduce, release, perform, display, or disclose that technical data, computer software, and computer software documentation to any covered government support contractor not to exceed the quantity specified in Column 7 of Table 4.

3) Technical data pertaining to commercial products and commercial services necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data). License rights pertaining to technical data pertaining to commercial products and commercial services described in and granted by the Contractor or its subcontractor to the Government under DFARS 252.227-7015(b)(1) shall also apply to all such technical data associated with delivered computer software pertaining to commercial products and services, including but not limited to, user’s manuals, installation instruction, and operating instructions.

4) The duration of all such licenses shall be, at minimum, for the period of performance of this contract (including options, if exercised), unless the license specifies a longer period for the total quantity listed in Column 6 of Tables 3 and 4. The Contractor will be relieved of all responsibilities with respect to such licenses upon the end of the period of performance of this contract, at which time the Government will assume responsibility for acquiring those licenses under existing or follow-on contracts.

5) The Contractor shall not add, delete, or replace any technical data, computer software, or computer software documentation listed in Tables 3 and 4 unless the Government has approved that addition, deletion, or replacement and the Contracting Officer has modified the contract to add, delete, or replace that item from that table and deleted or replaced the applicable license(s) from Appendix A.

6) If the Contractor or any subcontractor adds, deletes, or replaces any technical data, computer software, or computer software documentation pertaining to commercial products and commercial services required to be delivered to the Government included in any CDRL described in Exhibit A listed in Tables 3 or 4 before this precondition is satisfied, the Contractor shall delete that technical data, computer software, or computer software documentation from that CDRL and deliver the technical data, computer software, and computer software documentation listed in Tables 3 or 4. The Contractor agrees that all

Intellectual Property Rights costs it and its subcontractor(s) incurred in incorporating into, and then deleting that technical data, computer software, and computer software documentation content, from that CDRL exceed that which would be incurred by a prudent person in the conduct of competitive business and are therefore unallowable.

Table 3

Rights in Commercial Products and Commercial Services Technical Data

Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7

Description (DID)

SRD Number Offeror Proposed Rights Category Offeror Proposed Price for License

Table 4 Rights in Commercial Products and Commercial Services Computer Software and Computer

Software Documentation

Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8

Description (DID)

SRD Number Vendor Name;

Software

Application Name;

License No.

Number of Licenses

Offeror Proposed Price for License

c. Special license for contract administration information.

1) The Contractor grants the Government a perpetual, royalty free, worldwide, nonexclusive, irrevocable license to use, modify, perform, display or disclose all intellectual property presently identified to be delivered, provided, furnished, or otherwise made available under a Contract Data Requirements List (CDRL) listed in Table 5 below, in whole or in part, within the Government. The Government may not, without the written permission of the Contractor, release or disclose that intellectual property outside the Government, use the intellectual property for manufacture, or authorize the intellectual property to be used by another party, except that the Government may reproduce, release, or disclose such intellectual property or authorize the use or reproduction of such intellectual property during the period of performance of this contract (including options, if exercised) by the following covered government support contractors outside the Government (including their subcontractors) to perform their respective contracts listed below:

A. [Insert name of CGSC] ([Insert contract number and delivery/task order number]) B. [Insert name of CGSC] ([Insert contract number and delivery/task order number]) C. [Insert names of OSD Cost Assessment and Program Evaluation (CAPE) CGSCs, so

OSD does not have to expend costs and waste time having their support contractors enter into nondisclosure agreements with the Offeror after award] ([Insert contract number and delivery/task order number])

2) The Contractor agrees the Government shall have the unilateral right to add to, or delete from, this list at any time including retroactively covered government support contractors (and contracts), and its exercise of that right shall not entitle the Contractor or its subcontractors to an equitable adjustment or a modification of any other terms and conditions of this contract.

Intellectual Property Rights

Table 5 Special License for Contract Administration Information

Column 1 Column 2 Column 3 Column 4

CDRL

No.

CDRL Title CDRL Subtitle Offeror Proposed Price for License Proposed

d. Rights in contractor intellectual property incorporated into the awarded contract.

1) DFARS 252.227-7016(c)(1) (Rights in Bid or Proposal Information) states that the

Government shall not release, perform, display, or disclose the contractor’s proposal outside the Government without the Contractor’s written permission. Accordingly, and except as otherwise provided herein, upon contract award, the Contractor grants the Government an unrestricted, perpetual, royalty-free, worldwide, nonexclusive, irrevocable license to use, modify, perform, display, disclose, or release for any purpose, and permit others to do so, all intellectual property contained in this contract and any modifications thereto. Excepted items are as follows:

A. ______________ B. ______________ C. ______________

2) As to any excepted items listed in subsection (1), the Contractor grants the Government

Limited Rights in other than commercial technical data, and Special License for Contract Administration Information, as applicable.

3) This license does not require, and shall not be construed as requiring, the Government to release any portion of this contract or any modification thereto under the Freedom of Information Act (5 U.S.C. § 552) to any person to the extent the Government determines a valid exemption exists. This license is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforceable at law or equity against the United States, the Department of Defense, or the Department of the Air Force by the contractor or any other individual or corporate person (including, but not limited to, a requester of such records).

4. Additional Marking Requirements.

a. The Contractor shall affix a copy of this Attachment (less inapplicable commercial licenses in

Appendix A) to any CDRL it delivers to the Government. In addition, if the contents of any CDRL delivered to the Government contains commercial technical data, commercial computer software, or commercial computer software documentation, prior to delivery the Contractor shall physically attach a copy of the applicable commercial license(s) listed in Tables 3 and 4 contained in Appendix A for that CDRL to that CDRL. The Contractor shall also expressly identify by highlighting in red ink which specific items of commercial technical data located on which specific portions of that intellectual property the release of which outside the Government is restricted by that/those license(s). If the contents of any CDRL the Contractor delivers to the Government listed in Table 5 will be delivered with Special License for Contract Administration Information described in subsection c.(3) above, the Contractor shall affix to the cover page of that intellectual property the restrictive marking prescribed by DFARS 252.227-7013(f)(4), delete the word “technical” from that restrictive marking, and insert the following text immediately after the phrase “License No” in that marking: “SPECIAL

LICENSE FOR CONTRACT ADMINISTRATION INFORMATION/___**___

PROPRIETARY.” Under such circumstances, the Contractor shall also physically attach a copy of this Attachment to that intellectual property prior to delivery.

Intellectual Property Rights

b. Since some CDRLs (e.g., BB/CC/DD/EE0C Technical Data Package, BB/CC/DD/EE0D

Technical Data Package List) require the delivery of both technical data and contract administration information, or both technical data and computer software, different license rights will apply to those portions of those CDRLs that require the delivery of technical data than those portions that require the delivery of contract administration information or computer software. Under such circumstances, the Contractor shall affix all restrictive markings required by Tables 1 and 5 to the cover sheet of the CDRL, mark each subsequent sheet of intellectual property with an abbreviated marking(s) to indicate the applicable restrictive rights assertion(s), and refer to the title/cover page for additional information. When only portions of the intellectual property are subject to asserted restrictions, such portions shall be identified by highlighting in green ink which contract administration information located on which specific portions of that CDRL the release of which outside the Government is restricted by the

SPECIAL LICENSE FOR CONTRACT ADMINISTRATION INFORMATION/___**___

PROPRIETARY described in subsection 3.c above.

c. The Contractor acknowledges and agrees that, given the type of license described in subsection 3.c. that applies to specific persons for specific purposes for specific items of intellectual property delivered at specific times during performance of this contract, failure to affix the proper restrictive marking to the appropriate intellectual property prior to delivering or otherwise providing that intellectual property to the Government exponentially increases the risk that that intellectual property will be released to unauthorized persons for unauthorized purposes outside the period of performance of this contract. Accordingly, in addition to the release from liability contained in DFARS 252.227-7013(b)(6) and 252.227-7014(b)(6), the Contractor agrees to release the Government from liability for any release or disclosure of contract administration information made in accordance with the terms of the license specified in subsection 3.c. above, or by others to whom the recipient has released or disclosed that data and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed that data to which is affixed the restrictive marking prescribed by subsection 4.a. above.

d. As part of its proposal, the Contractor will provide the Government a conformed copy of their Volume I submittal, portions of which it affixed with the restrictive marking for technical data (i.e., (b)(4): LIMITED RIGHTS) and the restrictive marking for contract administration information (i.e., (b)(4): SPECIAL LICENSE FOR CONTRACT ADMINISTRATION INFORMATION/___**__ PROPRIETARY), as appropriate.

e. The Contractor agrees not to affix any restrictive markings to any government-furnished information, any corrections or modifications to government-furnished information, information to which the Government is entitled to greater rights, or to intellectual property to which is affixed an SLRC-A restrictive marking.

5. Allocability of Intellectual Property Prices to CLINs.

The price in Column 8 in Tables 1, 3, and 4, Column 7 in Table 2, and Column 4 in Table 5 for each intellectual property license, shall be invoiced against the applicable IP license rights CLIN.

6. Updates.

The price of any rights in intellectual property described above include the price of the rights in intellectual property to any changes (e.g., updates, software maintenance patches, minor version changes (e.g., from V1.1 to V1.2 not V1.1 to V2.0), substitutions) made to that intellectual property by the Contractor anytime during performance of this contract.

Intellectual Property Rights

7. License Transference.

The Contractor acknowledges and agrees that the Government’s rights in technical data, computer software, computer software documentation, and contract administration information, are not contingent upon that intellectual property being delivered, provided, furnished, or otherwise made available under a CDRL during performance.

8. Order of Precedence.

With respect to any license, including any renewal or extension of such license, to technical data, computer software, or computer software documentation, or any combination thereof, that the Contractor or its subcontractors listed in Tables 3 or 4 of this Attachment and that pertains to commercial products and commercial services to be delivered, provided, furnished, or otherwise made available under a CDRL during performance of this contract, the following provisions shall take precedence over conflicting provisions , notwithstanding any provision in those licenses to the contrary:

a. The Government shall have the perpetual, worldwide, nonexclusive, irrevocable license right to use, perform, display or disclose that technical data, computer software, or computer software documentation pertaining to commercial products and commercial services, in whole or in part, within the Government (not to exceed the quantity specified in Column 10 of Table 4 of this Attachment) irrespective of the sites at which the Government may use that technical data, computer software, or computer software documentation. The Government may not, without the Contractor’s written permission, release or disclose that technical data, computer software, and computer software documentation outside the Government or use that technical data and computer software for manufacture, except that the Government shall have the right to grant to any covered government support contractor the right to use, modify, reproduce, release, perform, display, or disclose that technical data, computer software, and computer software documentation (not to exceed the quantity specified in Column 10 of Table 4 of this Attachment).

b. The duration of this license shall be, at a minimum, for the period of performance of this contract, unless the license specifies a longer period.

c. Operation, maintenance, installation, training data (other than detailed manufacturing or process data). License rights to technical data pertaining to commercial products and commercial services described in and granted by the Contractor to the Government under DFARS 252.227-7015(b)(1) shall also apply to all such technical data associated with delivered computer software, including but not limited to, users manuals, installation instructions, and operating instructions.

d. Choice of law and disputes. Disputes arising between the Contractor and the Government shall be subject to the Contract Disputes Act such that the jurisdiction and forum for disputes shall be the Armed Services Board of Contract Appeals (ASBCA) or the U.S. Court of Federal Claims (COFC), as appropriate. Any claim the Contractor files with the Government on behalf of the owner of technical data or computer software, and any claim the Government files with the Contractor, shall be submitted within the period specified in FAR 52.233-1 (Disputes).

The license the owner of the technical data or computer software grants the Contractor shall be governed by Federal law, not state law or the law of any foreign country.

e. Arbitration, equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this contract, binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorneys fees, Intellectual Property Rights costs, or interest, may be awarded against the Government only when expressly authorized by statute (e.g., Prompt Payment Act, Equal Access to Justice Act).

f. No automatic renewals. If any license tied to periodic payment is provided under this contract (e.g., annual software maintenance or annual lease term), such license shall not renew automatically upon expiration of its current term.

g. Indemnification. Any provision in any license that purports to require the Government to indemnify the Contractor or the owner of the technical data or computer software is void pursuant to FAR 52.232-39. Any provision in any license that requires the owner of the technical data or computer software to defend or indemnify the Government is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action in accordance with 28 U.S.C. § 516.

h. Warranties. The license shall not disclaim warranties via the use of an “as is” provision or otherwise disclaim express warranties in this contract (e.g., DFARS 252.246-7001 (Warranty of Data)).

i. The owner of the technical data or computer software shall not use the fact that the Contractor is using the owner’s products in any notification to the public.

j. Audits. The owner of the technical data or computer software shall not be entitled to enter the Contractor’s or Government’s premises to audit the use of any license, as the Contractor cannot permit an auditor physical access to those premises due to security concerns. The owner of the technical data or computer software may submit to the Contractor written notice with information indicating a substantiated belief that the Contractor or the Government is not using the intellectual property within the terms described in the license, whereupon the owner of the technical data or computer software or the Government may conduct an internal audit and provide a statement to the owner of its findings made under penalty of perjury (28 U.S.C.

§ 1746).

k. Continued performance. The owner of the technical data or computer software understands that the ultimate purpose of the Contractor entering into this License with the owner of the technical data or computer software is for the owner to supply to the Government technical data and computer software to be used by the Department of Defense to develop, produce, and sustain a weapon system that must be available at all times for use by the President or his duly authorized representatives. Accordingly, should the Government use, release, or disclose the intellectual property described in the License in a manner inconsistent with its terms, the Government shall not be required to remove, uninstall, or stop using that intellectual property or return such intellectual property to the Contractor and the owner’s remedy will be limited to monetary damages.

l. Inconsistencies. In the event of inconsistencies between the license and Federal law, including but not limited to, FAR 52.232-25 (Prompt Payment), FAR 52.246-2 (Inspection of Supplies—Fixed-Price), FAR 52.246-3 (Inspection of Supplies—Cost-Reimbursement), DFARS 252.225-7048 (Export-Controlled Items) and regulations specified in the applicable DD 254 (Department of Defense, Contract Security Classification Specification), Federal law shall apply.

m. Elimination of disabling subroutines. Given the circumstances described in subsection 8.k.

above, prior to delivery to the Government, the owner of the computer software shall remove or otherwise permanently prevent all functionality residing therein that automatically disables the software from operating upon the occurrence (or non-occurrence) of certain conditions (e.g., at the expiration of the license period, changes to the hardware configuration, failure to pay license fees or any other breach of the licensing terms).

Intellectual Property Rights

9. Nondisclosure Agreements.

a. The Contractor, its subcontractors, and its vendors, hereby waive the requirement in DFARS

252.227-7013(b)(3)(iv)(C) and DFARS 252.227-7014(b)(3)(iii)(C) for CGSCs to enter into nondisclosure agreements with it/them prior to the Government’s use, release, or disclosure of technical data or computer software identified in Tables 1 or 2 affixed with Limited Rights or Restricted Rights markings to such CGSCs.

b. The Contractor and its subcontractors shall not require CGSCs listed in subsection 3.c. to enter into nondisclosure agreements with it/them prior to the Government’s use, release, or disclosure of contract administration information listed in Table 5 to those CGSCs.

c. The Contractor and its subcontractors shall not require Government employees to sign nondisclosure agreements prior to releasing technical data, computer software, or contract administration information to those employees.

10. Subcontractor Flow Down.

The Contractor represents that it has included the requirements to all intellectual property presently identified to be delivered, provided, furnished, or otherwise made available described in CDRLs attached to Section J of the contract into all of its subcontracts and other contractual or legal instruments with its subcontractors, suppliers, vendors, and divisions at all tiers. The Contractor further represents that it shall include the requirements for intellectual property rights described in this Attachment to Section J of this contract into all its subcontracts and other contractual or legal instruments with its subcontractors, suppliers, vendors, divisions, and affiliates at all tiers. The Contractor understands that during its review of the proposal the Contractor submitted in response to RFP FA8533-25-R-0002, these representations were material factors upon which the Government relied when making its award decision.

11. Changes to Asserted Restrictions.

a. DFARS 252.227-7013(e)(3) and DFARS 252.227-7017(e)(3) state that a contractor may make additional assertions after award “when based upon new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision.”

The Contractor has the burden of proving by clear and convincing evidence that its new assertion is based upon (1) “new information”, or (2) an “inadvertent omission” and that inadvertent omission would not have “materially affected the source selection decision.” The Contractor shall have this burden of proof before the Contracting Officer, the Armed Services Board of Contract Appeals, and the U.S. Court of Federal Claims.

b. The Contractor represents for it and its subcontractors, suppliers, vendors, and divisions that it has thoroughly reviewed all information within its possession, custody, and control—including the content of its proposal submitted in response to RFP FA8533-25-R-0002 to minimize the potential that after award it will make additional assertions based upon new information or inadvertent omissions. The Contractor understands that during its review of the proposal the Contractor submitted in response to RFP FA8533-25-R-0002, this representation was a material factor upon which the Government relied when making its award decision.

c. To demonstrate the existence of an inadvertent omission, the Contractor must submit to the Contracting Officer drafts of its proposal and any other information used to prepare its proposal, and a narrative explanation that describes the omission, how the omission occurred, and the

Intellectual Property Rights information the contractor omitted from but intended to include in its proposal. (FAR 14.407- 4(e)(1)(ii), (iii), (v); FAR 15.508).

12. Continued Performance Pending Outcome of Intellectual Property Dispute.

The Contractor agrees that it must proceed diligently with performance of this Attachment, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer. (FAR 52.233-1(i)) This requirement includes, but is not limited to, delivery of all intellectual property described in Exhibit A of this contract.

13. Appendix A: Licenses in Technical Data, Computer Software, and Computer Software Documentation— Commercial Products and Commercial Services.

(End of Attachment)